AN ACT to amend and reenact §61-8D-1, §61-8D-3, §61-8D-4 and §61-8D-9 of the Code of West Virginia, 1931, as amended, relating
to offenses of child abuse and neglect by a parent, guardian
or custodian; defining terms and creating exceptions to terms;
creating a criminal offense for child abuse by a parent,
guardian or custodian which creates a substantial risk of
bodily injury; establishing misdemeanor penalties for a first
and second offense; providing that those convicted of a first
or second offense may be required to undergo certain
counseling; making a conviction of a third or subsequent
offense a felony and establishing criminal penalties; stating
that reasonable discipline of a child is not precluded by the
child abuse crimes; making it a felony for a parent, guardian
or custodian to grossly neglect a child which creates
substantial risk of serious bodily injury or death; creating
a criminal offense of child neglect by a parent, guardian or
custodian which creates a substantial risk of bodily injury
with misdemeanor penalties for first and second offenses and
felony penalties for third and subsequent offenses; providing
that a parent, guardian or custodian convicted of a
misdemeanor is not required to register as a person convicted
of child abuse or neglect or suffer other potential collateral
consequences; permitting a person convicted of a misdemeanor
to also be required to complete certain counseling; providing
that a parent, guardian or custodian convicted of a
misdemeanor is not required to register as a person convicted
of child abuse or neglect and may not, solely because of the
conviction, have their custody, visitation or parental rights
automatically restricted; and requiring the court to declare
a person an abusing parent under article six, chapter forty-nine of this code if they are convicted of a felony offense
under this article.

Be it enacted by the Legislature of West Virginia:

That §61-8D-1, §61-8D-3, §61-8D-4 and §61-8D-9 of the Code of West
Virginia, 1931, as amended, be amended and reenacted to read as
follows:

ARTICLE 8D. CHILD ABUSE.

§61-8D-1. Definitions.

In this article, unless a different meaning is plainly
required:

(1) "Abuse" means the infliction upon a minor of physical
injury by other than accidental means.

(2) "Child" means any person under eighteen years of age not
otherwise emancipated by law.

(3) "Controlled substance" means controlled substance as that
term is defined in subsection (d), section one hundred one, article
one, chapter sixty-a of this code.

(4) "Custodian" means a person over the age of fourteen years
who has or shares actual physical possession or care and custody of
a child on a full-time or temporary basis, regardless of whether
such person has been granted custody of the child by any contract,
agreement or legal proceeding. "Custodian" shall also include, but
not be limited to, the spouse of a parent, guardian or custodian,
or a person cohabiting with a parent, guardian or custodian in the
relationship of husband and wife, where such spouse or other person
shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.

(5) "Guardian" means a person who has care and custody of a
child as the result of any contract, agreement or legal proceeding.

(6) “Gross neglect” means reckless or intentional conduct,
behavior or inaction by a parent, guardian or custodian that
evidences a clear disregard for a minor child’s health, safety or
welfare.

(7) "Neglect" means the unreasonable failure by a parent,
guardian or custodian of a minor child to exercise a minimum degree
of care to assure the minor child's physical safety or health. For
purposes of this article, the following do not constitute “neglect”
by a parent, guardian or custodian:

(A) Permitting a minor child to participate in athletic
activities or other similar activities that if done properly are
not inherently dangerous, regardless of whether that participation
creates a risk of bodily injury;

(B) Exercising discretion in choosing a lawful method of
educating a minor child; or

(C) Exercising discretion in making decisions regarding the
nutrition and medical care provided to a minor child based upon
religious conviction or reasonable personal belief.

(8) "Parent" means the biological father or mother of a child,
or the adoptive mother or father of a child.

(9) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.

(10) "Sexual exploitation" means an act whereby:

(A) A parent, custodian, guardian or other person in a
position of trust to a child, whether for financial gain or not,
persuades, induces, entices or coerces the child to engage in
sexually explicit conduct as that term is defined in section one,
article eight-c, chapter sixty-one of this code; or

(B) A parent, guardian, custodian or other person in a
position of trust in relation to a child persuades, induces,
entices or coerces the child to display his or her sex organs for
the sexual gratification of the parent, guardian, custodian, person
in a position of trust or a third person, or to display his or her
sex organs under circumstances in which the parent, guardian,
custodian or other person in a position of trust knows such display
is likely to be observed by others who would be affronted or
alarmed.

(11) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.

(12) "Sexual intrusion" means sexual intrusion as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.

(13) A “person in a position of trust in relation to a child”
refers to any person who is acting in the place of a parent and
charged with any of a parent’s rights, duties or responsibilities
concerning a child or someone responsible for the general
supervision of a child’s welfare, or any person who by virtue of
their occupation or position is charged with any duty or
responsibility for the health, education, welfare, or supervision
of the child.

(a) If any parent, guardian or custodian shall abuse a child
and by such abuse cause such child bodily injury as such term is
defined in section one, article eight-b of this chapter, then such
parent, guardian or custodian shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than $100 nor more than
$1,000 and imprisoned in a state correctional facility for not less
than one nor more than five years, or in the discretion of the
court, be confined in jail for not more than one year.

(b) If any parent, guardian or custodian shall abuse a child
and by such abuse cause said child serious bodily injury as such
term is defined in section one, article eight-b of this chapter,
then such parent, guardian or custodian shall be guilty of a felony
and, upon conviction thereof, shall be fined not less than $1,000
nor more than $5,000 and committed to the custody of the Division
of Corrections not less than two nor more than ten years.

(c) Any parent, guardian or custodian who abuses a child and
by the abuse creates a substantial risk of death or serious bodily
injury, as serious bodily injury is defined in section one, article
eight-b of this chapter, to the child is guilty of a felony and,
upon conviction thereof, shall be fined not more than $3,000 or
imprisoned in a state correctional facility for not less than one
nor more than five years, or both.

(d)(1) If a parent, guardian or custodian who has not
previously been convicted under this section, section four of this
article or a law of another state or the federal government with
the same essential elements abuses a child and by the abuse creates
a substantial risk of bodily injury, as bodily injury is defined in
section one, article eight-b of this chapter, to the child is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $100 nor more than $1,000 or confined in jail
not more than six months, or both.

(2) For a second offense under this subsection or for a person
with one prior conviction under this section, section four of this
article or a law of another state or the federal government with
the same essential elements, the parent, guardian or custodian is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $1,500 and confined in jail not less than
thirty days nor more than one year, or both.

(3) For a third or subsequent offense under this subsection or
for a person with two or more prior convictions under this section,
section four of this article or a law of another state or the
federal government with the same essential elements, the parent,
guardian or custodian is guilty of a felony and, upon conviction
thereof, shall be fined not more than $3,000 and imprisoned in a
state correctional facility not less than one year nor more than
three years, or both.

(e) Any person convicted of a misdemeanor offense under this
section:

(1) May be required to complete parenting classes, substance
abuse counseling, anger management counseling, or other appropriate
services, or any combination thereof, as determined by Department
of Health and Human Resources, Bureau for Children and Families
through its services assessment evaluation, which shall be
submitted to the court of conviction upon written request;

(2) Shall not be required to register pursuant to article
thirteen, chapter fifteen of this code; and

(3) Shall not, solely by virtue of the conviction, have their
custody, visitation or parental rights automatically restricted.

(f) Nothing in this section shall preclude a parent, guardian
or custodian from providing reasonable discipline to a child.

(a) If a parent, guardian or custodian neglects a child and by
such neglect causes the child bodily injury, as bodily injury is
defined in section one, article eight-b of this chapter, then the
parent, guardian or custodian is guilty of a felony and, upon
conviction thereof, shall be fined not less than $100 nor more than
$1,000 dollars or imprisoned in a state correctional facility for
not less than one nor more than three years, or in the discretion
of the court, be confined in jail for not more than one year, or
both.

(b) If a parent, guardian or custodian neglects a child and by
such neglect cause the child serious bodily injury, as serious
bodily injury is defined in section one, article eight-b of this
chapter, then the parent, guardian or custodian is guilty of a
felony and, upon conviction thereof, shall be fined not less than
$300 nor more than $3,000 dollars or imprisoned in a state
correctional facility for not less than one nor more than ten
years, or both.

(c) If a parent, guardian or custodian grossly neglects a
child and by that gross neglect creates a substantial risk of death
or serious bodily injury, as serious bodily injury is defined in
section one, article eight-b of this chapter, of the child then the
parent, guardian or custodian is guilty of a felony and, upon
conviction thereof, shall be fined not less than $1,000 nor more
than $3,000 dollars or imprisoned in a state correctional facility
for not less than one nor more than five years, or both.

(d)(1) If a parent, guardian or custodian who has not been
previously convicted under this section, section three of this
article or a law of another state or the federal government with
the same essential elements neglects a child and by that neglect
creates a substantial risk of bodily injury, as defined in section
one, article eight-b of this chapter, to the child, then the
parent, guardian or custodian, is guilty of a misdemeanor and, upon
conviction thereof, for a first offense, shall be fined not less
than $100 nor more than $1,000 or confined in jail not more than
six months, or both fined and confined.

(2) For a second offense under this subsection or for a person
with one prior conviction under this section, section three of this
article or a law of another state or the federal government with
the same essential elements, the parent, guardian or custodian is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $1,000 and confined in jail not less than
thirty days nor more than one year, or both.

(3) For a third or subsequent offense under this subsection or
for a person with two or more prior convictions under this section,
section three of this article or a law of another state or the
federal government with the same essential elements, the parent,
guardian or custodian is guilty of a felony and, upon conviction
thereof, shall be fined not more than $2,000 and imprisoned in a
state correctional facility not less than one year nor more than
three years, or both fined and imprisoned.

(e) The provisions of this section shall not apply if the

neglect by the parent, guardian or custodian is due primarily to a
lack of financial means on the part of such parent, guardian or
custodian.

(f) Any person convicted of a misdemeanor offense under this
section:

(1) May be required to complete parenting classes, substance
abuse counseling, anger management counseling, or other appropriate
services, or any combination thereof, as determined by Department
of Health and Human Resources, Bureau for Children and Families
through its services assessment evaluation, which shall be
submitted to the court of conviction upon written request;

(2) Shall not be required to register pursuant to the
requirements of article thirteen, chapter fifteen of this code; and

(3) Shall not, solely by virtue of the conviction, have their
custody, visitation or parental rights automatically restricted.

§61-8D-9. Convictions for offenses against children.

In any case where a person is convicted of a felony offense
against a child as set forth in this article and the person has
custodial, visitation or other parental rights to the child who is
the victim of the offense or any child who resides in the same
household as the victim, the court shall, at the time of
sentencing, find that the person is an abusing parent within the
meaning of article six, chapter forty-nine of this code as to the
child victim, and may find that the person is an abusing parent as
to any child who resides in the same household as the victim, and
shall take such further action in accord with the provisions of
said article.